Citation Nr: 21063499 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-30 126 DATE: October 14, 2021 REMANDED Entitlement to a compensable rating for left knee degenerative joint disease for the period prior to April 27, 2016, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND Entitlement to a compensable rating for left knee degenerative joint disease for the period prior to April 27, 2016, and in excess of 10 percent thereafter is remanded. The Veteran had active service in the Air Force from April 1976 to April 1980. This matter was previously before the Board of Veterans' Appeals (Board) in April 2020, at which time it was remanded for additional development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Board finds that there has not been substantial compliance with its April 2020 remand directives; accordingly, the Board finds that additional remand is necessary. The Board finds that it is necessary to clarify the nature and scope of claims currently on appeal. In April 2015 the Veteran filed a claim relating to a total disability rating based on individual unemployability (TDIU). This claim was denied in June 2016. In April 2016 the Veteran filed a claim for, in pertinent part, an increased rating for his left knee disability, then characterized as left knee arthralgia and assigned a noncompensable rating. This claim was also denied in a separate June 2016 rating decision; this second rating decision reflects that the RO construed the TDIU claim pending at the time of the explicit left knee claim as encompassing the left knee claim, equating the left knee claim date with the April 2015 TDIU claim date. The Veteran timely filed a single Notice of Disagreement (NOD) addressing, in pertinent part, his left knee claim, and timely perfected his appeal of this issue in May 2017. In April 2020 the Board inaccurately characterized the Veteran's left knee claim as a claim for an initial compensable disability rating. The Board now takes this opportunity to clarify that service connection was granted and the noncompensable rating assigned in August 1980, and no appeal of this decision was initiated or perfected. Accordingly, the August 1980 rating decision has become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Thus, any subsequent claim for increase must be construed as a claim alleging worsening of the disability since the initial rating, not an appeal of the initial rating itself. The Board remanded the Veteran's left knee claim. In October 2020 the RO granted the Veteran an increased rating of 10 percent for his left knee disability, effective April 27, 2016. This does not represent a complete grant of the benefits sought on appeal. 10 percent does not represent the highest available rating for the Veteran's left knee disability, nor does the 10 percent grant cover the entire period on appeal. As noted above, in June 2016 the RO construed the Veteran's April 2015 TDIU claim as encompassing the subsequent left knee claim and identified the left knee claim date as April 22, 2015. The Board will not now disturb that conclusion. See e.g., Smith v. Wilkie, 32 Vet. App. 332 (U.S. 2020)For an increased rating claim, the period on appeal may extend as far back as one year prior to the date of claim. See Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010); 38 C.F.R. § 3.400(o)(2). Thus, the period on appeal with respect to the Veteran's left knee claim effectively begins April 22, 2014. Accordingly, the appeal continues as entitlement to a compensable rating for left knee degenerative joint disease for the period prior to April 27, 2016, and in excess of 10 percent thereafter. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the October 2020 rating decision also granted the Veteran entitlement to TDIU, effective January 14, 2014; accordingly, no appeal for TDIU is currently before the Board. In April 2020 the Board remanded the Veteran's left knee claim to obtain a new VA examination to determine the current severity of his left knee disability. A new VA examination of the Veteran's left knee was obtained in July 2020. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The July 2020 VA examination is inadequate, and so additional remand is required to ensure substantial compliance with the Board's April 2020 remand directives. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The July 2020 VA examiner stated that there was no history of joint instability or subluxation. However, this does not reflect consideration of VA treatment notes documenting the Veteran's reports of feeling as if his knees were going to "give out" or "give way", as well as VA treating providers' documentation of the use of braces for his knees. 5/15/2019, CAPRI, p. 768; 5/28/2020, CAPRI, pp. 16, 19. The Veteran also reported a history of falls to the VA examiner. 7/16/2020, C&P Exam, p. 13. The Board finds that the examiner's conclusion that there is no history of joint instability or subluxation, without additional explanation, does not reflect consideration of all the evidence of record. Similarly, the July 2020 examiner recorded only a diagnosis of "arthralgia" of the left knee, despite a May 2002 diagnosis of degenerative joint disease of the knees. 5/28/2020, CAPRI, p. 400. Accordingly, the July 2020 VA examination is inadequate. The VA treatment records reflecting the use of braces for the Veteran's knees is also pertinent in light of recent changes to the rating schedule which occurred during the pendency of the Veteran's appeal; evaluation of disabilities involving recurrent subluxation, lateral instability, and/or patellar instability now includes the prescription of assistive devices such as braces, canes, or walkers as an element of the rating criteria. 38 C.F.R. § 4.71a, diagnostic code 5257 (2021). In light of the foregoing, the Board finds that the Veteran's left knee claim should be remanded to obtain an adequate VA examination reflecting consideration of all lay and medical evidence of record and evaluation under all currently applicable diagnostic criteria. (Continued on the next page) The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's left knee degenerative arthritis. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should consider all lay and medical evidence of record, and their evaluation should reflect consideration of all symptoms of the Veteran's service-connected left knee disability, to include instability. The examiner should specifically note whether there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability and should further note whether there has been a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Additionally, if flare-ups are reported, the examiner should estimate the degree of functional impairment during such episodes. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.